Steuerwald v. Richter
| Decision Date | 28 November 1914 |
| Parties | STEUERWALD v. RICHTER ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.
Action by Amelia Steuerwald, administratrix of Jonathan D. Steuerwald, deceased, against August Richter, Jr., and others, partners as Richter, Dick & Reutman. From an adverse order, plaintiff appeals. Affirmed.
Appeal from an order overruling demurrer to defendants' answer. The action was brought by plaintiff, as administratrix of the estate of her deceased husband, Jonathan D. Steuerwald, for the recovery of money had and received by the defendants to the plaintiff's use. The plaintiff demurred to the defendants' answer, for that it did not state facts sufficient to constitute a defense.
The answer alleges, in substance, that during the month of January, 1910, said Jonathan D. Steuerwald, deceased, contracted for and subsequently acquired title to and went into possession of a certain tract of land, comprising 3.098 acres, more or less, in the city of Milwaukee, county of Milwaukee, Wis., and particularly described in the answer; that on February 7, 1910, the defendants as copartners and one Scranton Stockdale entered into a verbal copartnership agreement with said Jonathan D. Steuerwald for the improvement and sale of said land and division among them in equal one-third shares of the proceeds and profits to be derived from the same, it being agreed that the defendants, as copartners, and said Stockdale should each pay to said Steuerwald the sum of $2,183.34 as the equivalent for an undivided one-third interest each with said Steuerwald in said land, and that said land should be turned over to and improved by said copartnership, and then sold and the proceeds and profits equally divided among said partners upon the aforesaid one-third basis; that pursuant to said agreement said Stockdale paid to said Steuerwald on the 7th day of February, 1910, for an undivided one-third interest in said land and the profits to be derived from a sale thereof, the sum of $2,183.34, and the defendants as such copartners paid to said Steuerwald on the 7th day of June, 1911, for an undivided one-third interest in said land and the profits to be derived from the sale thereof, the sum of $500 on account, and agreed to pay the balance of $1,683.34 upon demand, and up to the time of the death of said Steuerwald were ready and willing to pay said balance to him, and since the death of said Steuerwald have been ready and willing to pay said balance to the plaintiff as the personal representative of the estate of Jonathan D. Steuerwald, deceased; that on the 7th day of February, 1910, in consideration of such copartnership agreement said Steuerwald contributed said land to said copartnership as firm capital, and that said defendants and Scranton Stockdale, together with said Steuerwald, as such copartners, went into actual possession of said land, caused it to be surveyed, graded, and divided into parcels, and designated “Inez-Howard Subdivision”; that the defendants, together with said Stockdale and Steuerwald as such copartners, made valuable permanent improvements upon many of said parcels of land, erecting houses and other buildings thereon and making other improvements, each of said copartners contributing much time and money to the making of such improvements; that thereafter the defendants, for and in behalf of said copartnership, sold many parcels of said land with buildings and improvements upon land contract, the said Steuerwald, who had retained the legal title to said land, executing land contracts to the purchasers and agreeing to give proper warranty deeds upon payment of the whole or part of the purchase price as the case might be, said purchasers paying to said defendants on behalf of said copartnership the amounts upon said land contracts as they became due and payable; that defendants, together with said Stockdale and Steuerwald as copartners, did sell some parcels of land for cash, and that said Steuerwald and wife in recognition of said copartnership arrangement executed warranty deeds to the purchasers and caused the purchase price of said parcels to be paid to the defendants for and in behalf of said copartnership; that the defendants pursuant to said copartnership agreement collected large sums of money on account of the purchase price of said parcels of land so sold, and also realized considerable money upon mortgages executed by said Steuerwald and wife upon some of said land, and paid out and expended vast sums of money for the erection of buildings and the making of other improvements upon said land, and for interest, taxes, insurance, and other expenses necessarily growing out of the ownership, improvement, and sale of said land, and that the sum of $8,001.86, for which this action was brought, represents approximately the net balance in the hands of the defendants at the time of the commencement of this action, realized from sale of said parcels of land, but that said sum is not held by the defendants for the benefit of plaintiff, but for the use and benefit of the members of said copartnership, the defendants being engaged in the adjustment and winding up of said copartnership affairs--a considerable part of the purchase price of some of said land so sold still remaining unpaid and outstanding and some of said land remaining unsold--and that the plaintiff in her representative capacity would be entitled to a one-third share of the net balance remaining in the hands of the defendants after the copartnership affairs have been adjusted and an accounting had; that said Jonathan D. Steuerwald up to the time of his death recognized said copartnership arrangement, co-operating with the defendants and said Stockdale in carrying out the same, and that said Steuerwald never repudiated said copartnership arrangement; that six or seven of said parcels of land have not been sold, owing to the untimely death of said Steuerwald, who held the title to said land in trust for the copartnership; that one of said parcels has a building erected thereon, and all are equipped with service pipes and connections for water, sewer, and gas, and that all street improvements in front of said parcels of land have been made, for all of which the defendants have expended large sums of money for and in behalf of said copartnership; that the defendants, in reliance upon the copartnership agreement, have spent a great deal of time and money and rendered valuable services in improving said land and in collecting the proceeds and profits realized from so much thereof as had been sold, and that they will suffer irreparable loss and damage if the copartnership agreement should not be enforced; that said Stockdale also rendered valuable services and expended money in improving the land pursuant to the copartnership agreement, and has a one-third interest in said land and proceeds derived and to be derived from a sale of the same, and that said Stockdale is a necessary party to the action, and that a complete and final determination of the controversy cannot be had without his presence, and that he should be made a party defendant in the action.
The prayer of the answer is that Stockdale be made a party defendant, with leave to interpose an answer, and...
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